Mr D Johnson v North West Anglia NHS Foundation Trust: 3314724/2023
REASONS
(Written reasons having been requested subject to Rule 62(3)) Background and IssuesINTRODUCTION
[1]The Claimant worked for the Respondent, as an orthopaedic surgeon, from 1 June 2023 to the termination of his contract, with effect 3 August 2023.[2]The Respondent considered him to be engaged as an agency worker and stated that due to ‘the (unspecified) serious nature of the allegations made against him.’, they were entitled to terminate his agency contract, on one week’s notice.[3]This public preliminary hearing was listed to determine the Claimant’s employment status and accordingly the Tribunal’s jurisdiction to hear his claim of automatic unfair dismissal. An earlier costs application made by the Respondent was withdrawn. 1 of 8 The Law[4]Section 230 of the Employment Rights Act 1996 (‘ERA’) provides that:(1) In this Act “employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.(2) In this Act “contract of employment” means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing.[5]Both parties referred to a range of authorities, to which I shall refer, as I consider appropriate, below. The Evidence[6]I heard evidence from the Claimant and also from a Ms Stacey Mackereth, a staff service manager with the Respondent, both of whom provided witness statements.[7]The Claimant’s evidence can be summarised as follows:a. He applied for the role via an agency, completing application forms provided by them, but then subsequently completing further forms provided by the Respondent. He also completed the Respondent’s lengthy induction process, although he was not interviewed by them.b. He did not, in fact, start work until 15 June 2023, due to pre-arranged holiday commitments, for which period he was not paid.c. He entered directly into terms of engagement with the Respondent [68- 83]. Despite that contract being titled ‘contract of engagement; for directly engaged temporary agency workers’, he considered himself to be an employee, as had been the case, he said, on previous locum appointments with other NHS trusts.d. He was paid directly by the Respondent (the Agency receiving a commission), via PAYE.e. It was not in dispute that to carry out his role, he was required to be fully integrated into the Respondent’s organisation, using their medical equipment and IT hardware and software.f. Nor was it in dispute that by virtue of the nature of his role and the regulatory requirements attached to it that it would have been impossible for him to have substituted another person if he was unable or unwilling to attend for work.g. He was provided an identity badge which stated that he was a ‘Locum Consultant Orthopaedic Surgeon’, with the Respondent’s title beneath. 2 of 8 (Miss Mackereth agreed this, less that she said that the Claimant’s title was not ‘Locum’, but ‘Agency’, although she had not seen the actual badge herself.)h. While his role was initially described as ‘8 to 6’, or ‘8.30 to 5.30’, he in fact worked shifts on a surgical rota. He said that once the shifts were allocated, the Respondent was obligated to maintain that offer and he was obliged to complete them: there therefore being ‘mutuality of obligation’.i. He accepted that his pay documents referred to ‘assignment number’, rather than ‘employee number’[84]. He agreed that (apart from overtime), employees at the Trust would not have to complete time sheets, as he did [85]. He also agreed that in the event that, on a shift, there was no work to do and that if he were to leave early, he could not bill for that time, whereas his employed colleagues would be paid, nonetheless, in such circumstances.j. He agreed that when he had concerns about his pay, he did raise these with the Agency, seeking their intercession with the Respondent but, he said, only because his previous attempts to do so with the Respondent were ignored [110].[8]Ms Mackereth’s evidence can be summarised as follows:a. The Claimant was engaged to fill a short-term gap caused by a substantive vacancy, which was going through the recruitment process. The Respondent approached the Agency to fill this gap.b. It was the Agency’s responsibility to carry out initial vetting of the Claimant and to ensure his CV matched the Respondent’s requirements. He was not interviewed by the Respondent.c. She agreed that the Claimant was required to complete the Respondent’s induction process.d. The Claimant was not allocated a line manager but would have been expected to report to the Clinical Lead in his division, who would also sign off his timesheets. However, in practice, she agreed that several other persons actually signed his timesheets, perhaps deputising for the Clinical Lead, if absent or on holiday.e. While she accepted that there were various aspects of the contract that indicated a high degree of ‘control’ over the Claimant, in relation to ‘devoting the whole’ of the Claimant’s time to the Respondent; holiday requests (clause 6.4) and the application of disciplinary and grievance procedures, she said that, in practice, these clauses were not enforced. She could not explain why such clauses were in the contract, if not relevant to the Claimant. She said that the only Trust policies and procedures referred to in the contract that did apply to the Claimant was the Trust’s Resolution/Grievance policy but accepted that this had not been explained to the Claimant. She also agreed, in cross-examination that the assertion in her statement as to only the grievance policy applying to the Claimant 3 of 8 was ‘maybe wrong’, as it was clear that other policies, such as use of the intranet (clause 2.6), health and safety (2.7), GDPR and conflicts of interest did apply to him. She also agreed that references to a ‘line manager’ in the contract did not apply to the Claimant. When asked to explain ‘why so many terms were inapplicable’ she said that she ‘couldn’t’.f. She agreed that the Claimant could have been directed to other duties, or had his role varied. It was obvious that he had to comply with directions given to him; treat the patients allocated to him and use the theatres provided to him.g. She agreed that once shifts were allocated to the Claimant, he was expected to work them, and the Respondent was obliged to honour those shifts. Submissions[9]On behalf of the Respondent, Ms Jennings made the following submissions:a. She referred to her skeleton argument as to the law, in particular Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 1 All ER 433 EWHC which refers to the well-known criteria for a contract of service: providing a worker’s own work and skill; a sufficient degree of control by the employer and the other provisions of the contract being consistent with a contract of service.b. The ‘whole picture’ should be looked at, to include the context of the arrangement; the degree of personal service; the degree of control; the existence of a mutual obligation; the ‘reality’ of the situation and the true intentions of the parties (Montgomery v Johnson Underwood Ltd [2001] EWCA ICR 819).c. Relevant factors for consideration are as follows: i. The Respondent did not interview the Claimant, or even speak to him before he was assigned, which would be unthinkable for such a senior person, who was to become an employee. ii. This was a short-term arrangement to fill a gap in a substantive post. iii. It cannot be realistic that the Claimant, as a clearly intelligent man, thought that he was an employee. iv. The ‘elephant in the room’ is the contract, in which, she had to accept, there were elements indicating employment status, leading to the unusual situation where, instead of relying on the contract, the Respondent is obliged to argue as to the reality of the relationship. In this case, the contract did not reflect the reality of the situation. While it may appear misleading currently this was not the case for the Claimant, at the time. 4 of 8 v. The references to ‘line manager’ are, in effect, a ‘red herring’, as the Claimant neither had a line manager, nor complained of the lack of one. vi. The nature of the appointment dictates the allocation of shifts; the use of the Respondent’s equipment and the degree of control exercised over the Claimant. vii. The Claimant could not bill for any sick leave he needed to take, in comparison to employed colleagues who would be able to take advantage of the NHS’s relatively generous sick pay provision. viii. If the Claimant did not work his shifts, there was nothing the Respondent could do about it, apart from terminating the contract. If that issue were determinative, then nobody could be a worker. ix. He was treated differently from his colleagues, by his pay arrangements and badge title. x. The requirement for him to complete time sheets and the variance in hours worked each week rules against employment status. xi. He was responsible for his own registration and CPD.d. The Claimant knew the reality of the situation, for which he was paid a premium. His tax and NI arrangements are irrelevant[10]On behalf of the Claimant, Ms Twomey made the following submissions:a. What is agreed is that there is a written contract between the parties, which sets out the terms of the arrangement between them.b. To be clear as to the Claimant’s case: he is not saying that he was a permanent employee but accepts that he was on a temporary contract.c. Employees are also introduced to employers by agencies, who then earn commission. Merely being introduced by an agency does not make that person an ‘agency worker’, as described by the Respondent. The Agency was not supplying his work to the Respondent. The title of the contract does not therefore assist the Respondent, but instead they have ‘stuck a label’ onto to what is, in fact, a contract of employment.d. There is nothing in this case to indicate that the Claimant was ‘selfemployed’. His reference to being ‘self-employed or through D Johnson Orthopaedics Ltd’ on his declaration of interests’ form [48] was just that, a declaration of interest, but on this occasion, he was neither self-employed, nor being paid or contracted via this company.e. There clearly was a mutuality of obligation, as stated in clause 4.1 and as admitted by the Respondent’s witness. There’s no requirement for there to be set hours of work. 5 of 8f. The Respondent’s witness’ suggestion that clauses in the contract would not be enforced against the Claimant, or were not operated ‘in practice’, or were not the ‘reality’ is untenable and unsupported by corroborative evidence. The witness’ evidence is hypothetical. This is not some small employer, but an NHS Trust, who can be expected to draft a contract without such now admitted flaws. Nor does the contract, as many such contracts would, specifically exclude the possibility of it being a contract of employment.g. A very high degree of control and absolute personal service and integration were indispensable to the Claimant’s role, and a hospital could not function otherwise.h. The length of the contract is not determinative, nor is the lack of an interview, which may also have applied to short-term employees.i. As to being line-managed, it is the Claimant’s evidence that Ms Garnett was his line manager and it is only today, for the first time that it is apparent to him that the Respondent did not think he was subject to line management. Conclusions[11]The start point in my consideration is the contract and reliant on MOD HQ Defence Dental Service v Kettle UKEAT/0308/06, I have considered that detailed document and find that it is, having looked at the facts, the exclusive record of the parties’ agreement. As that case stated: ‘… there may be a carefully prepared contract, appropriate to the circumstances of the parties, made available by one party to the other at the start of their relationship and signed without question. In such a case a Tribunal will no doubt readily conclude that it was the intention of the parties, objectively ascertained, that all the terms of the contract should be contained in it.” And I find that to be the case here.[12]If the interpretation of clauses from that contract are open to question, then, the Respondent having drafted it, the contra proferentem doctrine applies, with any such ambiguity being interpreted in the Claimant’s favour.[13]I consider the following factors as a ‘given’ in circumstances such as this case:a. Control: it would be inconceivable that the Claimant could have carried out his role without a very high degree of control, which was clearly the case here.b. Substitution: As effectively accepted by both parties, substitution was impossible in this case.c. Integration: Again, the same principle applies. 6 of 8d. Use of employer’s equipment: again, unavoidable.[14]It seems to me that in these circumstances the Respondent wishes to have ‘the best of both worlds’ – to have a highly qualified and experienced surgeon working for them, subject to many terms and conditions that would normally apply to an employee, but instead labelled as a ‘worker’ and therefore avoiding the perceived constrictions of an employment relationship.[15]There was nothing to indicate to me (apart from vague assurances from the Respondent’s witness) that if the Respondent wished to enforce any of the terms of the contract referred to, there was anything to stop them doing so.[16]As indicated by the contract and as accepted by the Respondent’s witness, there was mutuality of obligation, which is the sine qua non of an employment relationship.[17]It may be that in circumstances where an employer, for good reasons, has no option but to exercise strict control over a worker; to oblige him to use only the employer’s equipment and IT; to absolutely prohibit substitution and to require almost total integration, that then the only valid relationship is one of employment, particularly so, in this case, when there is mutuality of obligation.[18]The reality of this contract, therefore, is that it was one of either short-term or fixed-term employment, regardless of how it is titled. The Claimant was presented with a contract, into which he had no input and therefore had to ‘take it or leave it’. His evidence is that nonetheless he regarded himself as an employee and I can see, from both the wording of the contract and the nature of his working relationship with the Respondent and based on his experience of previous locum work (on occasions up to six months in length), how he could conclude that. I don’t consider that factors such as completing time sheets (many employees are paid by the hour); not being interviewed (a consequence of being introduced by an agency and being a short-term employee, rather than being an agency worker); not being line managed (the Claimant thought he was and was not disabused of that until this hearing); not being offered full NHS sick pay (although he was eligible under the contract for SSP) (which, again, could have been due to the short-term nature of his engagement) and not being provided set hours of work are determinative of a worker, as opposed to an employee relationship. 7 of 8 Judgment[19]For these reasons, therefore, I find that the Claimant was an employee of the Respondent at the relevant time and that accordingly the Tribunal has jurisdiction to hear his claim of automatic unfair dismissal. Approved By:[1]The Claimant worked for the Respondent as an orthopaedic surgeon from 1 June 2023 until the termination of his employment with immediate effect on 3 August 2023 with approximately one week’s pay in lieu of notice. His employment was arranged through an agency.[2]Following ACAS Early Conciliation from 31 October 2023 until 15 November 2023, the Claimant presented his ET1 on 14 December 2023. At this time he was represented by specialist solicitors. He complained of automatically unfair dismissal for asserting a statutory right and ticked the boxes in part 8 of the ET1 for notice pay, arrears of pay and other payments. In his Particulars of Claim and in box 8 of the ET1, the Claimant identified his money claims as a complaint for breach of contract relating to pension contributions and claims for unauthorised deductions from wages (and possibly, in the alternative, breach of contract) relating to unpaid hours, unpaid travel time and a shortfall in notice pay.[3]The Respondent entered a short Grounds of Resistance denying that the Claimant had been an employee and therefore that the Tribunal had jurisdiction to hear his claims for breach of contract. The Respondent denied the claims generally.[4]A Preliminary Hearing for case management took place on 13 June 2024.[5]The Claimant served an insufficiently well particularised Schedule of Loss on 31 August 2024.[6]A Preliminary Hearing in public took place on 13 February 2025 to determine the Claimant’s employment status. By judgment sent to the parties on 8 March 2025, Employment Judge O’Rourke found that the Claimant had been an employee of the Respondent. The case was set down for the present four day Final Hearing and the Claimant was ordered to provide a properly particularised Schedule of Loss by 27 February 2025. He did not provide a document complying with this Order.[7]On 24 September 2025 the Claimant withdrew his claim for automatically unfair dismissal.[8]On 29 September 2025 the Claimant provided a Schedule of Loss in materially identical terms to the previous version.[9]The Respondent applied for an Unless Order on 13 October 2025 relating to the Claimant’s failure to comply with the Order for a properly particularised Schedule of Loss, but that application had not been dealt with by the time of the Final Hearing on 28 October 2025.[10]By email of 17 October 2025 the Claimant’s solicitors provided some limited information about the claim for payment for travel time. On that day the Respondent sent its witness statement to the Claimant’s solicitors, but they did not receive one from the Claimant.[11]On 23 October 2025 the Claimant’s solicitors came off the record, apparently after a dispute between them and the Claimant about the accuracy of the claim they had advanced on his behalf.[12]On 24 October 2025 the Claimant sent the Respondent and the Tribunal an application for postponement of the Final Hearing, an application to amend his claim and a witness statement.[13]On 26 October 2025 the Claimant made a further application for a postponement of the Final Hearing and for permission to amend his claim, and provided a draft amended Particulars of Claim and a draft amended Schedule of Loss.[14]The adjournment application was resisted by the Respondent and was refused by Order of 27 October 2025. On the same day the Claimant provided a ReAmended Schedule of Loss and Particulars of Claim and an Excel spreadsheet setting out some calculations.[15]At the Final Hearing I was provided with an agreed bundle of 375 pages and a 12 page supplementary bundle from the Claimant. Miscellaneous other documents emerged during the course of the hearing. Witness statements were provided by the Claimant on his own behalf and by Ms Stacey Mackareth, Flexible Staffing Service Manager, for the Respondent. AMENDMENT APPLICATIONBackground
[16]At the beginning of the Final Hearing the Claimant confirmed that he wished to pursue his amendment application. I spent considerable time trying to understand the scope and basis of the application by reference to the various documents served by the Claimant over the preceding months.[17]The relevant details in box 8.2 of the ET1 and in the original Particulars of Claim were as follows: 17.1. The Claimant’s contract with the Respondent provided that:a. Travel to and from his normal place of work to other NHS sites would be included as working time.b. Payment of his wages was based upon him submitting a timesheet.c. He was paid for each hour worked for the Respondent.d. He was required to take specified breaks, which were unpaid other than in identified circumstances. 17.2. The Claimant had opted into the NHS pension scheme at the commencement of his employment but the Respondent had not enrolled him into it. He had complained, and on 26 July 2023 the Respondent had offered to retroactively enrol him in the pension scheme, but his employment had then been terminated and the enrolment had not taken place. The Respondent did not make employer’s contributions. This amounted to a breach of contract. 17.3. The Respondent had wrongly deducted breaks from the Claimant’s pay. 17.4. He was owed 37 hours’ pay for unpaid work at a rate of £75.17 per hour (totalling £2,781.29) and the Respondent should additionally compensate him for employer’s pension contributions for these hours. 17.5. He was owed 17 hours’ pay for travel during the period of his employment, at the same rate, totalling £1,277.89. This had been included on his timesheet on 8 August 2023. The Respondent should additionally compensate him for employer’s pension contributions for these hours. 17.6. He was owed notice pay based on variable hours. Furthermore he had not been given a full week’s notice pay.[18]The Claimant’s Schedule of Loss of 31 August 2024 stated: 18.1. Under the heading “Pension contributions”, that the Respondent had been required to make contributions of 14.38% of the Claimant’s hourly rate. The hourly rate was said to be £96.73 and the hourly employer’s contribution £13.91. On that basis the sum sought was £5,320.48. 18.2. Under the heading “Wages owed on termination”, at a rate of £75.17 per hour plus employer’s pension contributions of £13.91 per hour, the Claimant was owed £3,295.16 for 37 hours of unpaid work. 18.3. The Claimant was owed £1,514.36 for 17 hours of travel time at a rate of £75.17 per hour plus employer’s pension contributions of £13.91 per hour. 18.4. The Claimant was owed £2,004.31 for notice pay[19]The Claimant’s Schedule of Loss of 29 September 2025 was in materially identical terms to the previous version.[20]The Claimant’s solicitors’ email of 17 October 2025 provided limited information relating only to the claim for payment for travel time.[21]The Claimant’s documents of 27 October 2025 (Re-Amended Schedule of Loss, Re-Amended Particulars of Claim and Excel spreadsheet) were based on two alternative premises. The first premise was that the Claimant had actually been employed on the basis of a 45 hour working week. The second (alternative) premise was that the Claimant had been employed on an hourly paid basis, as originally pleaded in his ET1. The Re-Amended Schedule of Loss contained the following particulars (as relevant): 21.1. The Respondent should have made pension contributions at a rate of 20.6% on an hourly rate of £84.63. 21.2. On the first premise, the Claimant was owed for a total of 145 hours of unpaid work, including unpaid out of hours and emergency on call hours. 21.3. Alternatively, on the second premise, the Claimant was owed for 19 hours of unpaid work (although the Claimant reduced this at the Final Hearing to 14.5 hours). 21.4. On either premise, the Claimant was owed for 17 hours of travel time (during the hearing this was reduced to 16 hours). 21.5. There was a shortfall in the Claimant’s notice pay.[22]The Claimant’s Re-Amended Particulars of Claim contained proposed amendments as to the factual and evidential background for the claims as now advanced. As to the precise sums claimed, it stated “please see amended Schedule of Loss”.[23]During the hearing the Respondent accepted that some monies were due to the Claimant in respect of a shortfall in his pay in lieu of notice (although the appropriate hourly rate remained unagreed).[24]The Claimant made a variety of oral submissions, some of which were consistent with the latest set of written documents and some which were not. By lunchtime on the second day of the hearing I understood the application and the Respondent’s defence to it to be as follows: 24.1. Pension:a. Initially the Claimant argued that the Respondent had failed to action his application to opt in to the NHS pension scheme, and that he had thereby lost the value of the employer’s contribution at a rate of 20.6%. He ultimately accepted that he had been paid at a rate of £84.63 per hour because he was not enrolled on the pension scheme. Had he been enrolled on the pension, the Respondent’s contribution of 14.38% would have resulted in an hourly rate to him of £75.17, from which he would have been required to make an employee’s contribution. Once both those contributions were made, the national NHS pension scheme would have made the employer’s contribution up to 20.6% in total. The Claimant understood that, seen from this perspective, the only loss of pension contributions he had actually suffered was of the 6.22% contribution that would have come from the national pension scheme had he been enrolled, and that he would have had to pay an employee’s contribution from his hourly rate before this was due. That loss was consequential upon the Respondent not enrolling him on the scheme, rather than amounting to a breach of contract in itself. On this analysis, the breach of contract upon which he relied was the Respondent’s alleged failure to enrol him in the pension.b. The Respondent argued that the Claimant was putting the claim on a completely different basis to the manner in which it had previously been argued, which was, essentially, that its failure to make the employer’s pension contributions was a breach of contract in itself. The Respondent would have to recalibrate its defence to the claim if it was to be advanced on this new basis, and could not be confident that it would be able to do so within the current listing. 24.2. Unpaid work: a. The Claimant continued to pursue the argument that he had in fact been employed for a 45 hour working week and had therefore suffered a 145 hour shortfall of pay. The Respondent said that this premise was an entirely new claim advanced without any proper basis, and had extremely poor prospects in light of the clear contractual terms. b. In the alternative, the Claimant argued that he had lost 14.5 hours of pay for travel time during some early and late starts, and a further sum for on-call non-resident hours in the week of 10 July 2023 which had been paid at 50% of his full rate. The Claimant submitted that those hours should have been paid at 100%. The Respondent argued that these were entirely new claims advanced without proper explanation. 24.3. Travel time: the Claimant put this claim on the same basis as he had previously done, and the Respondent accepted that an amendment was not required in respect of this part of the case. The proper rate of pay for the hours claimed would be one of the issues to be decided.Relevant law
[25]The principles relevant to the amendment of claims are described in Selkent Bus Co v Moore [1996] IRLR 661. The Tribunal should consider: 25.1. The nature of the amendment: amendments may range from the correction of clerical and typing errors, the addition of factual details to existing allegations and the addition or substitution of other labels for facts already pleaded to, on the other hand, the making of entirely new factual allegations which change the basis of the existing claim. The tribunal must decide whether the amendment sought is one of the minor matters or is a substantial alteration pleading a new cause of action. 25.2. The applicability of statutory time limits: if a new complaint or cause of action is proposed to be added by way of amendment, it is essential for the tribunal to consider whether that complaint is out of time and, if so, whether the time limit should be extended under the applicable statutory provisions. 25.3. The timing and manner of the application: An amendment may be made at any time and an application should not be refused solely because there has been a delay in making it. However, it is relevant to consider why the application was not made earlier and why it is now being made: for example, the discovery of new facts or new information appearing from documents disclosed on discovery.[26]The Tribunal should take into account all the circumstances and balance the hardship and prejudice of allowing the amendment against the injustice and hardship of refusing it.[27]The discretion to permit a party to amend its claim is not unconfined. An ET1 is “not something just to set the ball rolling”: Chandhok v Tirkey [2015] IRLR 195.Conclusions
[28]I gave oral judgment on the amendment application, which is repeated here for convenience. The working week[29]I did not grant permission to the Claimant to advance his claim on the premise that he was employed by the Respondent on the basis of a 45 hour working week. This would be a substantial amendment which would radically alter the entire basis of the remaining claims.[30]The prejudice to the Respondent of allowing this amendment would be significant: it would require the Respondent to take extensive further instructions, including from third parties such as the agency which arranged the Claimant’s employment (since it was the agency which was said to have made representations to the Claimant that he would be employed on this basis). It would probably require a postponement of the already disproportionately time consuming and expensive trial.[31]The prejudice to the Claimant was less significant, since it was clear to me that the amendment had poor prospects of success. Not only were the contractual terms quite clear, but the Claimant’s own ET1 reiterated that he was employed on an hourly paid basis. There was no evidential material brought to my attention to suggest that any agreement was ever made between the Claimant and the Respondent that he would be employed on a 45 hour week basis. Therefore, not allowing the amendment would only deprive the Claimant of the opportunity to argue a point with poor prospects of success, which did not weigh as heavy in the balance as the prejudice to the Respondent.[32]Moreover the timing and manner of the application was unsatisfactory. The Claimant was ordered to provide particulars of his claim on 13 February 2025. He was present at the Preliminary Hearing at which that order was made. No particulars were forthcoming until last week, and no proper or acceptable explanation had been given for that failure. If the Claimant wished to pursue his former solicitors in respect of their conduct of the litigation, that option was open to him (although the value of what he had lost by reason of any failure on their part was open to doubt). Pension contributions[33]I granted permission, insofar as it was necessary, for the Claimant to argue that the claim in respect of pension contributions was put on the basis that the breach of contract was the Respondent’s alleged failure to enrol him on the scheme and the loss was that of the 6.22% of his hourly rate which would have been paid by the national pension scheme if he had been enrolled.[34]It seemed to me sufficiently clear that the ET1 stated that the Respondent’s failure to enrol the Claimant on the scheme was a breach of contract. The Respondent could be expected to have adduced sufficient evidence to explain the fact of the Claimant’s non-enrolment.[35]As to the loss flowing from that breach, no basis or calculation was clearly stated in the ET1 save that it was said that the Respondent did not make employer’s contributions. Prior to the few days before the Final Hearing, the loss was only properly described once by the Claimant: in his original Schedule of Loss, which described it as the 14.38% employer’s contribution. A Schedule of Loss is not, of course, a pleading, and can readily be amended during the litigation. After service of the original Schedule of Loss there was a failure by the Claimant properly to particularise his claim for compensation, and the final basis upon which it was advanced only emerged on day two of the Final Hearing. These are matters, however, which may go to costs insofar as they have caused or will cause expense or difficulty to the Respondent, or which may alternatively have gone to a strike-out application.[36]However, the breach having been pleaded, the question of quantum was not a matter for amendment. It would not be just to deny the Claimant the opportunity to argue about the amount and causation of his loss, whether consequential or otherwise. Unpaid working hours[37]I granted permission, insofar as it was required, for the Claimant to pursue the argument that he was not paid for 14.5 hours in respect of untaken rest breaks and 50% of his rate of pay in respect of 23.5 hours of on-call non-resident hours. His original ET1 and Schedule of Loss stated only that he had been underpaid by 37 hours, with little (if any) particularisation of the basis for that claim. That had now reduced and its basis has been somewhat clarified. As with the pension claim, the core of the complaint having been pleaded – that is, that the Claimant suffered a shortfall in his hourly pay – it was not for me to prevent the Claimant from particularising his loss by refusing to allow him to amend the claim for loss. If prejudice was caused to the Respondent, including by reason of any requirement to postpone the Final Hearing in order to permit the Respondent to take proper instructions, that could be considered in the context of a costs application. ISSUES FOR THE SUBSTANTIVE CASE[38]Following my oral judgment on the Claimant’s amendment application, we agreed a List of Issues, drafted by counsel for the Respondent. With amendments to reflect developments in the course of evidence, the issues were as follows: Pension (breach of contract):(1) Did the Respondent breach the Claimant’s contract of employment by not enrolling him in the NHS pension scheme at the outset of his employment?(2) Alternatively, did the Respondent breach the Claimant’s contract of employment by not actioning his enrolment in the NHS pension scheme on or after 26 July?(3) In either case, what was the Claimant’s loss? In considering that, what was the likelihood of the Claimant agreeing to repay the sums he had already been paid so that these could be paid into his pension, and therefore get the benefit of the national 6.22% top up? Working hours (unlawful deduction from wages / breach of contract):(4) Is the Claimant owed travel time of 16 hours?(5) Is the Claimant owed payment for 14.5 hours of working time in respect of deductions for enforced rest breaks which the Claimant says he did not take?(6) Was the 50% deduction to the pay of 23.5 hours on the timesheet at page 197 of the bundle in breach of contract? Should it have instead been paid at 100%? Pay in lieu of notice (unauthorised deductions from wages / breach of contract):(7) It is agreed between the parties that the Claimant is owed £1,142.51 gross pay for a shortfall in his pay in lieu of notice.(8) As per the claim for pension above, should 6.22% be paid to him on top of that? FINDINGS OF FACT Terms and conditions of the Claimant’s employmentFINDINGS OF FACT
[39]The Claimant was employed under the terms of a contract entitled “Contract of engagement; for directly engaged temporary agency workers”, signed by him on 6 July 2023. At the time of his employment the Respondent understood the Claimant to be an agency worker who was not an employee. Hence the written terms were not intended to amount to a contract of employment. Nonetheless they were the terms which were found by EJ O’Rourke in his judgment of 8 March 2025 to amount, in reality, to a contract of either short-term or fixed term employment.[40]The Claimant argued that because he was an employee it followed that he must have been employed under the NHS standard national terms and conditions for consultants. He did not produce this document or adduce any evidence in support of the proposition that he was employed under it. I reject that proposition and find that he was employed under the written terms referred to above.[41]As relevant, the contract provided as follows: 41.1. The Claimant’s base location was Peterborough City Hospital (PCH) and the role was “cross cover” (clause 2.2). His normal place of work was PCH and he would be required to work from that location or such other location as the Respondent may reasonably require (clause3.1 ). 41.2. He agreed to travel as may be required for the proper performance of his duties (clause3.2 ). 41.3. His normal working hours or shift pattern would be provided to him (clause4.1 ). 41.4. He would be entitled to be paid for work done outside his normal working hours to ensure that his normal duties were properly performed, if this was authorised by his line manager (clause4.2 ). 41.5. Time spent travelling between sites during normal working bours would be paid as working time (clause4.3 ). 41.6. Time spent travelling between his normal place of work and his home would not be paid but excess travel would be paid. Excess travel was the difference between travelling to and from his home to his normal place of work and traveling to and from a different site (clause4.4 ). 41.7. He would be required to complete a timesheet each day which would be approved by his line manager or nominated deputy on a weekly basis (clause 5.1). 41.8. The Respondent reserved the right not to pay where a timesheet was submitted more than four weeks after the Claimant had carried out the work (clause 5.1). 41.9. He would be paid on an hourly basis according to a Salary Rate, the amount of which was dependent on whether he joined the NHS pension scheme (clause 5.3). The Salary Rate would be multiplied by the hours recorded and authorised on the timesheet, subject to deductions such as tax, employee’s NI etc (clause 5.4). 41.10. The Salary Rate was calculated as follows (clauses 5.6 and 5.9):a. The Total Charge per hour was £108.74. This represented the total hourly cost to the Respondent of employing the Claimant, and consisted of: i. the Total Employment Cost of £96.73; and ii. the Agency Commission of £12.01.b. In the event that the Claimant was enrolled on the NHS Pension scheme, the following sums would be deducted from the Total Employment Cost in order to calculate the Claimant’s gross basic hourly rate: i. Employer’s NI of 13.8%; ii. Apprentice levy of 0.5%; and iii. Employer’s pension contribution of 14.38%.c. This resulted in a gross basic hourly rate of £65.05, to which would be added rolled up holiday pay (expressed as “WTR per hour 15.6%) of £10.12. The Gross Salary Rate including holiday pay would be £75.17.d. In the event that the Claimant was not enrolled on the NHS pension scheme, the same deductions would be made other than the employer’s pension contribution, resulting in a gross basic hourly rate of £73.23, to which would be added rolled up holiday pay at 15.56% of £8.84. The Gross Salary Rate on this calculation was £84.63. 41.11. The Claimant was required to take at least one unpaid thirty minute rest break in any shift rostered to last more than 6 hours and a second unpaid thirty minute rest break in any shift of over 9 hours. This time would be paid if it was not possible to take an uninterrupted break because of service needs or if the Claimant was required to “hold a bleep” during his shift (clause 5.7). 41.12. If the Claimant was eligible to become a member of the NHS Pension Scheme he could enrol into the scheme by completing a form and returning it to Flexible Staffing Service (clause 15.1).[42]The Claimant was provided with the contract as an attachment to a letter sent directly to him by the Respondent dated 26 May 2023. I find that a pro forma of the Respondent’s timesheet was also attached to the letter. I reject the Claimant’s assertion that neither the contract nor the timesheet was attached to the letter. His evidence on this was contradictory and unreliable. He had evidently forwarded the contract on to his agency by email on the same day.[43]The Respondent’s letter to the Claimant of 26 May 2023 stated that: 43.1. The payroll provider Civica would be responsible for the Claimant’s payroll. This would include making pension deductions “where workers are eligible and have chosen to opt-in”; 43.2. The Claimant had been given access to an electronic system called MyESR on which he could view his payslips during the course of his engagement. 43.3. He should use the timesheet attached to the letter.[44]The pro forma timesheet attached to the letter (and directly referenced in the contract) is set out in tabular form as follows: 44.1. The first main section of the form, near the top of the page, is for “WORK DONE, INCLUDING RESIDENT ON-CALL HOURS”. The column headings in this section indicate that the worker is to complete in the rows below, in respect of each shift, the day, date, start time, end time, “Break (in minutes, unpaid)”, and “Bleep holder Y/N”. The column header on the final column states: “If unable to take an uninterrupted break due to service needs, or being a bleep holder, authoriser must sign below” 44.2. It is quite clear from the formatting and layout of the form that what is required is that the authoriser sign in respect of untaken breaks against each relevant shift. 44.3. The column heading for “Break (in minutes, unpaid)” contains an asterisk which leads to a row at the bottom of this section of the form which states (in accordance with clause 5.7 of the contract – see paragraph 41.11 above): “workers must take at least one 30 minute break for a shift rostered to last more than 6 hours, and a second 30 minute break for a shift rostered for more than 9 hours. These breaks are unpaid unless … workers are unable to take an uninterrupted break due to service needs. The only exception to this rule is … workers who hold a bleep whilst working a … shift. In this case breaks will be paid. Authoriser must sign against each agency shift (above)” 44.4. Again, this makes it clear that what is required is that the authoriser signs against each specific shift in which the worker was unable to take an uninterrupted break. 44.5. The second section of the form, which is near the bottom of the page, is entitled “ON-CALL – NON-RESIDENT HOURS (paid at 50% reduced rate)”. In this section the worker should complete the day, date, start time, end time and unpaid break. They should also stipulate whether the on-call hours are resident or non-resident. 44.6. A final section of the form provides for the worker and the authoriser (or “supervisor”) to sign and date the bottom of the timesheet.[45]The Claimant started work for the Respondent on 1 July 2023 but only signed the contract of employment on 6 July. Before signing it, he added an annotation at the bottom stating that he had been required to work across two sites and required repayment for time spent travelling between them “in accordance with standard NHS allowance”, that he had had to do early starts and that he was scheduled on the on-call rota for the following week. None of this appears to be inconsistent with the express terms of the contract. Enrolment onto the NHS pension scheme Outset of employment[46]On 26 May 2023 the Claimant exchanged a series of emails with his agency as follows: 46.1. At 4:53pm the Claimant forwarded the contract he had received from the Respondent to Daniel Wilde (Placement Officer at the agency), saying that he read the contract as providing for a gross hourly basic rate of £65.05 per hour, but that he had only agreed to “£85ph plus pension contribution”. He also stated that he would like to be re-enrolled with the NHS pension scheme, and provided relevant personal details. 46.2. At 4:55pm Mr Wilde sent the Claimant an email which was described as “formal confirmation of your work at Peterborough Hospital”. There was no indication on this email that the details in it came from the Respondent rather than the agency. It stated that the rate of pay was “£85h/hr (inclusive of WTR)” and said about the pension: “All locum doctors are supplied with a Workers Employment Contract which will advise you on pension queries. Please ensure you read this carefully as it may affect your payrate. You are automatically enrolled into the pension scheme when paid via the trust, if you wish to opt out you must complete and submit an SD502 form”. 46.3. This was incorrect insofar as it stated that the NHS pension scheme was an opt-out scheme rather than and opt-in scheme, and seemed to imply that the employer’s pension contributions would be made on top of an £85 per hour rate of pay. In fact there was no pay rate of £85 per hour; the closest was the Gross Salary Rate of £84.16 applicable to those who were not enrolled in the NHS pension scheme (see paragraph 41.10.d above). Moreover the pension was not an opt-out scheme but an opt-in scheme, as clearly stated in the Respondent’s letter to the Claimant of the same date and clause 15.1 of the contract. 46.4. At 5:15pm Mr Wilde responded to the Claimant’s email of 4:53pm, saying that the rate of pay was £85 per hour inclusive of rolled-up holiday pay and that the rate referenced by the Claimant was “with the deduction of NHS pension”. He said that the Claimant could opt out of the NHS pension scheme using the SD 502 form and that this was “standard for locum bookings’. This email was incorrect as to the rate of pay, the opt-in nature of the pension scheme and as regards the £65.05 per hour pay rate which the Claimant had referenced. In fact, this was the gross basic hourly rate for an employee enrolled on the NHS pension scheme but not the Gross Salary Rate for such an employee, which was £75.17 per hour including the rolled-up holiday pay element (see paragraph 41.10.c above). 46.5. The Claimant responded at 5:26pm asking Mr Wilde to contact the Respondent to tell them that he wished to retain his NHS pension contribution. Mr Wilde agreed to do so by email of 5:37pm.[47]The Claimant’s case rests to a significant extent on his assertion that Mr Wilde forwarded on to the Respondent his request of 26 May 2023 to be enrolled in the NHS pension scheme. I saw no evidence that he had done so. Nor could I discern any reason why the Respondent would deliberately withhold evidence that this had happened, as alleged by the Claimant. Enrolling the Claimant on the pension scheme would be no detriment to the Respondent whatsoever. I find that Mr Wilde did not forward the email to the Respondent, and that the Respondent did not know at the outset of the Claimant’s employment that he wished to enrol in the NHS pension scheme.[48]I also find that at this time the Claimant misunderstood clause 5.9 of the contract. Indeed, it was clear to me that he only understood it for the first time during the hearing of this case. As at 26 May 2023 his misunderstanding had led him to believe that he should be paid £85 per hour with employer’s pension contributions on top of that. He did not understand at the time or until the hearing of this case that the figure in clause 5.9 of the contract for “NHS pension” represented the employer’s contribution and not the employee’s contribution. At some later stage he came to understand that his Gross Salary Rate would be £75.17 if he was enrolled in the pension, though I find that he was still confused about the calculation of employer’s and employee’s contributions on this sum.[49]The Claimant attended the Respondent’s premises on 29 May 2023 for his induction day. Whilst there he filled in several administrative forms. These included: 49.1. A form entitled “P2 New Starter Form” (“the P2 form”). This included in section 4 an “Employee statement” which required the employee to choose between Statements A, B or C. The statements related to whether or not the employee was in receipt of various benefits or pensions. The Claimant ticked Statement B. 49.2. A form entitled “HM Revenue & Customs Starter Checklist” (“the HMRC form”). This contained the same “Employee Statement” as the P2 form, with the same Statements A, B and C. This time the Claimant ticked Statement A.[50]The Claimant asserted in evidence that on the induction day he had filled in a form which gave him three options in respect of the NHS pension scheme: to be enrolled in the NHS pension scheme, to be enrolled in the NEST pension scheme or not to be enrolled in any pension scheme. Initially he indicated that one or more of the forms described in the paragraph above fitted that description. When he was taken to the forms and shown that they did not fit his description, he insisted that he had filled in a further form of the type he described, and that the Respondent must have withheld it from disclosure. Ms Mackareth said in evidence that no such form exists or is provided on induction. I accept that evidence.[51]The Claimant received his first pay on 7 July 2023 in the amount of £3,917.22. On 16 July 2023 he sent an email to the Respondent’s “DETIMESHEETS” email address complaining that he had not received a payslip or any explanation for the amount of his pay. He said that the pay was in respect of 84 hours of time worked as set on his timesheets for work done in the weeks of 2, 9, 16 and 23 June 2023, and that he was expecting £75.17 per hour. He asked for “payment in full” to be organised, but did not explain the basis on which, or the amount by which, he thought that the payment was short.[52]On 17 July 2023 Ms Cinzia Phillips (FSS Medical Booking Team Leader) responded to the Claimant reminding him that his timesheets could be viewed on the MyESR system.[53]In response, on 20 July 2023 the Claimant questioned the amounts itemised on his payslip and further stated “At the outset I indicated that I wish for pension contributions to be made however no pension contributions have been made” and “Your refusal to address these issues suggests that you have something to hide or seeks to avoid addressing”.[54]Ms Phillips’ response of the same day asked the Claimant for details of where he had previously indicated that he wished to be included in the pension, as the Respondent had nothing on file to this effect. She said that if he wished to join the pension he should download form SD 502 from the NHS pension scheme website and return it to her when completed.[55]On 21 July 2023 the Claimant responded to Ms Phillips stating, as regards the pension, that “During the appointment to this role the trust sent its usual appointment forms to the agency. This included two forms requesting identification of my desire for pension provision in accordance with the statutory provisions. These were provided. This was included on the forms provided on the first day of employment at the initial sign on at your HR flexible working dept. The pension calculations were itemised in the contract which stated that pension contributions were to be made. I find it inconceivable that as the Medical Booking Team leader you are unaware of the necessary statutory provisions for pensions, your own trust process and your own appointment forms. Unless I hear to the contrary, I assume you sent to and received from the agency and have ready access to these documents. NB: Unless advised I assume that you have the following forms on file: a) HMRC starter checklist provided for agency 20.5.23 notifying you of NI no, address, dob and "Employee statement" on pension options b) North West Anglia P2 New Starter Form signed and dated 23.5.23 indicating NI no DOB, address, Job title and "Employee Statement" on pension choices. c) My E mail response to agency 26.5.23 "I would want to be re-enrolled with my NHS pension no: 58038730" ... "If any travel between sites is necessary then external travel expenses would be applicable"[56]In this email: 56.1. The three documents listed at (a), (b) and (c) are the HMRC form and the P2 form (paragraph 49 above) along with the Claimant’s email to Mr Wilde described at paragraph 46.1 above. 56.2. The Claimant does not described any additional form of the type that he claimed, under evidence, to have filled in at induction (see paragraph 50 above).[57]Even when shown this email the Claimant continued to insist that there had been another form. He even insisted that it fell within the words: “This included two forms requesting identification of my desire for pension provision in accordance with the statutory provisions”, notwithstanding that there can be no sensible doubt that this is a reference to the HMRC form and the P2 form identified at (a) and (b) later in the same email. In my judgment the Claimant had, at best, got confused in his memory by the references to receipt of a pension in the three options offered in the “Employee Statements” in the P2 form and the HMRC form. His continued insistence on this point in the face of contrary evidence was an example of his intransigence and unreasonable failure to concede bad points in evidence. I find that he did not fill in any form on the induction day (or before) which offered him the option of enrolling on the NHS pension scheme.[58]In summary I find that: 58.1. the NHS pension scheme was operated by the Respondent as an optin scheme, at least in relation to those employees who were working under the same contract as the Claimant; 58.2. the Claimant knew from the Respondent’s letter of 26 May 2023 and the contract that it was an opt-in scheme, despite erroneous information that it was an opt-out scheme having been given to him by Mr Wilde; and 58.3. the Claimant signed the contract on the express basis that it was an opt-in scheme; and 58.4. the Claimant did not seek to opt in to the scheme at the outset of his employment other than by informing Mr Wilde of his wish to do so, but this information was not conveyed to the Respondent by Mr Wilde; and 58.5. accordingly the Respondent was given no instruction to enrol the Claimant on the scheme at the outset of his employment. It follows that it did not fail to act on any such instruction. After 26 July 2023[59]I find that the first that the Respondent knew of the Claimant’s wish to opt in to the NHS pension scheme was by way of his email of 20 July 2023. After this email there ensued correspondence as follows: 59.1. On 20 July Ms Phillips asked the Claimant “Please can you let me know where you have indicated that you wish to be included in the pension as there are no forms completed to say you wish to join the Pension , which would need to be downloaded from the NHS pension website the SD 502 and this needs to be completed and sent back to me!”. 59.2. The Claimant’s response to this was his email of 21 July quoted in paragraph 55 above, into which he coped Ms Mackareth. 59.3. Ms Mackareth responded on 26 July stating that:a. agency workers were not automatically opted in to the pension;b. the starter forms (signed at the induction day) did not contain a pension opt-in form;c. the contract stated that the pension was opt-in;d. she would be happy to assist the Claimant with opting in to the pension scheme if he was eligible to join;e. this could be done with effect from his commencement date but his rate of pay would have to be adjusted by deducting the employer’s and employee’s contributions from his hourly rate (setting out the precise reduction which would apply);f. the Claimant should confirm that he still wished to opt in and she would liaise with the Payroll department to progress it.[60]The Claimant did not respond to this email before the end of his employment. Instead, on 26 July 2023 he sent an email to Dawn Garrett (Service Manager in the Claimant’s department), without copying Ms Mackareth in, stating: I would dispute the response from Ms Malckereth [sic]. It is Ms Mackreth's [sic] suggestion that whilst the agency passed on details of the NI, no dob and tax details that they did not pass on the response to the pension options. I do not believe that this is correct and will check with the agency. Notwithstanding that: In that the trusts own forms (the HMRC stater checklist and NW Anglia P2 New stater form signed and dated 23.5.23) have been used in respect of my NI no, address, dob and tax details. Whilst the pension requests and registration number contained within the very same forms have not been used to initiate any pension contributions. None the less, whilst not accepting any fault, Ms Mackreth [sic] has agreed to initiate pension contributions from the outset as is my wish and request. Please arrange for this to be acted upon.[61]Ms Mackareth gave evidence that Ms Garrett did not pass this information on to her, and that in any event she was awaiting confirmation from the Claimant that he accepted the reduced rate of pay that she had explained to him. I accept that evidence.[62]On 3 August 2023 the Claimant’s employment was terminated by the Respondent. Thereafter a considerable volume of correspondence passed between the Claimant and the Respondent about various pay-related matters, including some about the pension.[63]Ms Mackareth gave unchallenged evidence that if the Claimant had accepted retroactive enrolment onto the pension during his employment, the retrospective employee’s contributions and overpayment of the employer’s pension contributions could have been recovered from his pay at source. If, however, he accepted retroactive enrolment onto the scheme after his dismissal he would have to repay the employer’s and the employee’s contribution as a lump sum.[64]I find that the Claimant did not comply with the requisite formalities in order to be enrolled onto the NHS pension scheme between 26 July 2023 and the termination of his employment on 3 August 2023, or indeed at any time. The Respondent offered to enrol him on receipt of the relevant documentation, but the Claimant did not comply with the requirements. Travel time[65]The relevant terms of the Claimant’s employment relating to payment for travel time are set out in clauses 4.3 and 4.4 of the contract (see paragraphs 41.5 and 41.6 above). In summary, he was entitled to be paid for travelling between sites and for commuting to a different site than his base location to the extent that it took longer to travel there from home than it would take to travel to his base location.[66]The contract also stated that the Claimant’s post was “cross cover”. I find that the Claimant knew that this meant that he had more than one “base location”. The fact that the contract did not state the name of the other location is not fatal to that point. He was required on a number of occasions to work at Hinchinbrooke Hospital in St Ives and knew by the time that he did so that that was the other site covered by his contract.[67]On that basis, the Claimant was not entitled under the terms of his contract of employment to payment for travel to Hinchinbrooke Hospital, as this would constitute ordinary commuting time.[68]In any event, during the Claimant’s employment he did not specify on his timesheets any time spent travelling between Peterborough Hospital and Hinchinbrooke Hospital, or any “excess” commuting time. In his email of 16 July (paragraph 51 above) he raised an issue about expenses for travelling between sites, which was eventually resolved. This did not relate to payment for time spent travelling between the two sites.[69]On 8 August 2023, after the end of his employment, the Claimant submitted a claim for payment for 17 hours spent travelling between Peterborough and Hinchinbrooke Hospital. He set out the claim in a schedule which attributed one hour per day to travel on 17 specified dates. It was explained in the Claimant’s solicitors’ email of 17 October 2025 (but not before that date) that this related to travel during early starts and late finishes. In evidence, the Claimant said that half an hour each way was a “reasonable retrospective average” rather than a reflection of the actual time spent travelling on those days. When asked how he had satisfied himself that he had actually undertaken the travel, he answered that it was because he did not stay in St Ives on those occasions but in Airbnb accommodation near Peterborough Hospital (his own permanent home being in Bristol).[70]The Claimant was shown a copy of his work schedule to which handwritten annotations had been made. The Claimant had sent this schedule to the Respondent following his dismissal, at a time when he had been seeking repayment of purportedly non-refundable hotel expenses for bookings covering the period after his dismissal. The Claimant was asked in cross-examination whether the annotations were made by him. He stated that he did not know. I considered it to be highly improbable that the Claimant would not recognise his own handwriting or remember whether he had made annotations to his schedule. I concluded that his answer was dishonest.[71]The schedule covered only the period after 27 July 2023. The word “Slepe” or “Sleep” or the letter “S” appeared on various dates which coincided with the dates on which the Claimant was scheduled to work in Hinchinbrooke Hospital. For example, he had written “Slepe” on the afternoon of 1 August, and was due to work in Hinchinbrooke Hospital on 2 August. For the afternoons of 2 and 3 August the letter “S” appeared in the same position as “Slepe” was written for 1 August. The Claimant was due to work at Hinchinbrooke Hospital on 3 and 4 August.[72]Another document in the bundle showed that the Claimant had booked a room in a hotel in St Ives called Slepe Hall Hotel on the night of 3 August. This booking confirmation showed that the hotel charges were fully refundable up to 24 hours before arrival.[73]Another booking confirmation for the Slepe Hall Hotel showed a booking for 14 August 2023 for 4 nights for a cost of £420. The schedule was annotated for those four nights with “Sleep” or “S”, and a further annotation above those dates said “14-18 Sleep cancelled 6.8.23 £420”.[74]On 7 August 2023 the schedule was annotated with the word “Dragon”. The Claimant was scheduled to work at Peterborough Hospital the following day. A booking confirmation showed that he had booked a room at the Dragonfly Hotel in Peterborough at a non-refundable advance purchase rate.[75]It was put the Claimant that he had not in fact travelled to Hinchinbrooke Hospital on the dates claimed in his 17 hour travel time schedule, but had stayed in St Ives when he was scheduled to work at Hinchinbrooke Hospital and in Peterborough when he was scheduled to work at Peterborough Hospital. It was suggested that he had later sought to reclaim travel time that had not actually been undertaken. He denied that this was the case.[76]In my judgment the evidence was perfectly clear that the Claimant had stayed in St Ives on the occasions when he was working at Hinchinbrooke Hospital. After his dismissal, he sought repayment not only of fictitious travel time, but also of hotel expenses at least some of which were in fact refundable.[77]The Claimant conceded only that on 3 August 2023 he had not in fact travelled to Hinchinbrooke Hospital outside his normal working hours, so the claim for travel time should be reduced to 16 hours.[78]I find that the Claimant has not shown on the balance of probabilities that he spent time travelling in respect of which he was due to be repaid under the terms of his contract of employment (or at all). His evidence on this point was highly unsatisfactory and in some respects dishonest. Untaken rest breaks[79]The terms relating to rest breaks are at clause 5.7 of the Claimant’s contract of employment (see paragraph 41.11 above). He was subject to enforced unpaid rest time of thirty minutes in any shift exceeding 6 hours and a further thirty minutes in any shift exceeding 9 hours, unless he was unable to take the break because of service needs or because he was a “bleep holder”. In those cases, the untaken rest break would be paid.[80]These terms were reiterated on the timesheet form, and the procedure for claiming payment for untaken rest breaks was stated twice on the form. Each untaken rest break had to be specifically authorised on the form by the authoriser. The timesheet form was expressly referred to in the contract of employment and a copy of it was sent to the Claimant along with the contract in advance of the commencement of his employment.[81]The Claimant’s claim for payment for 14.5 hours of untaken rest breaks was itemised on the Excel spreadsheet appended to his witness statement. This showed that he claimed: 81.1. 3.5 hours in respect of the payslip dated 7 July 2023, which covered the three weeks starting 29 May, 12 June and 19 June 2023; 81.2. 7 hours in respect of the payslip dated 28 June 2023, which covered the two weeks starting 26 June and 3 July 2023; and 81.3. 4 hours in respect of the payslip dated 21 July 2023, which covered the two weeks starting 10 and 17 July 2023.[82]None of the Claimant’s timesheets for these weeks identified that he had been unable to take any rest break and nor were any of them countersigned in the relevant column in accordance with the clear instructions on the form. Some of the timesheets showed that he had taken one rest break on some days. For example: 82.1. The timesheet for the week starting 3 July 2023 showed that the Claimant had worked four shifts exceeding nine hours, and in respect of each of them he had specified a single 30 minute rest break. There was no countersignature to account for the second, allegedly untaken, rest break. Accordingly the Respondent had not paid for the second enforced rest break in respect of any of those shifts. 82.2. The timesheet for the week starting 10 July 2023 showed that he had worked three shifts exceeding nine hours and had been a “bleep holder” throughout all of those shifts. The form also stated that he had taken no breaks in any of those shifts. However, there was no signature to validate these claims and accordingly the purportedly untaken rest breaks were not paid.[83]Furthermore, in the timesheet for the week starting 10 July 2023 the Claimant had miscalculated his total hours. For 10 July he identified that he had started work at 7am and finished at 8pm, but added that up to be 15 hours rather than 13. He accepted in evidence that this mistake accounted for two of the hours he was claiming.[84]The Claimant’s oral evidence on this matter was that as a consultant he did not take uninterrupted breaks (notwithstanding that on at least one timesheet he had stated that he did). As to the question of why the shifts were not countersigned, he said that the forms were all signed at the bottom by a Mr Carmichael, who was an experienced doctor who understood how timesheets were supposed to be completed. He also said that he was at no time a “bleep holder” because he was required to carry not a “bleep” but a mobile phone, on which he was required to be available at all times (notwithstanding that he had identified himself as a “bleep holder” on some timesheets but not others). He said that the use of the phrase “bleep holder” on the timesheet showed that the entire form was out of date and “archaic”. His emphatic – and in my judgment specious – position was that nothing on the form was reliable and that it was therefore reasonable for him to disregard its formal requirements.[85]I found the Claimant’s evidence on this point not to be credible or reliable. I was satisfied on the evidence that, save for the sum of £11.97 which was conceded by the Respondent to fall due in respect of the timesheet dated 21 July 2023, the Claimant had suffered no shortfall in pay. The time for which he claimed was accounted for by a two hour miscalculation on his part and by his failure to obtain a countersignature for breaks which he claimed not to have taken. The latter point was explained to him by Ms Mackareth before the termination of his employment, in an email dated 26 July 2023.[86]Furthermore I was not convinced on the balance of probabilities that the Claimant had in fact not taken his enforced rest breaks. Other than the inconsistently completed timesheets he did not adduce any corroborating evidence to the effect that he had not taken the breaks. His evidence was in other respects not credible, and in places it was dishonest. It appeared to me more likely than not that after he was dismissed he simply went through his timesheets and payslips in order to identify any area in which he could conceivably identify a shortfall in pay and had proceeded to make his claim on that basis regardless of the underlying facts. The claim for untaken rest breaks was an example of this, as were the claims for payment for on-call non-resident hours (below) and for travel time (above). On-call non-resident hours[87]The Claimant’s contract was silent on the question of pay for on-call nonresident hours. However, the second section of the timesheet form specified that these were paid at 50% of the normal rate of pay (see paragraph 44.5 above). The Claimant said in cross-examination that he had assumed “as per the bleep that didn’t exist, that this didn’t apply to me and it was a generic form used for everyone”. He also said that he had not seen the timesheet form until he had had to sign it, contrary to the finding I have made above that it was sent to him with his contract of employment before commencement of his placement.[88]Furthermore, the Respondent informed the Claimant’s agency that on-call nonresident hours were paid at 50% by way of a schedule signed by both Ms Phillips and Mr Wilde on 7 July 2023. This stated the Claimant’s hourly pay rate for on-call non-resident hours as £42.32. This document was sent to the agency specifically because the Claimant was rostered for on-call non-resident hours in the week of 10 July 2023. Initially the Claimant confused this document with a similar schedule which set out his full rate of pay, which had been signed by Mr Wilde and Ms Phillips on 25 and 26 May 2023. When he realised it was a different schedule he claimed never to seen it before. I reject that evidence. I find it more likely than not that it was sent to him and that he may simply have carelessly not examined it, assuming it to be the same as the earlier schedule.[89]In his timesheet for the week of 10 July 2023 the Claimant claimed for 23.5 hours in the on-call non-resident hours section. This was paid at 50% in accordance with the clearly stated terms set out on the timesheet, which he signed.[90]I find that the Claimant has not shown that he was entitled under his contract to receive 100% pay for on-call non-resident hours, and therefore that he did not suffer a shortfall of pay in this respect. The 50% pay rate was agreed in writing by his agent on his behalf and on the timesheet itself. Pay in lieu of notice[91]The Respondent conceded that the Claimant’s pay in lieu of notice was £1,142.51 short. The only question arising under this head was whether this amount should be enhanced by the 6.22% pension contribution discussed above. Since I have found that the Claimant has not established a contractual right to that pension contribution, it follows that he has not shown that he is entitled to that enhancement to his pay in lieu of notice. RELEVANT LAW Breach of contractRELEVANT LAW
[92]A former employee may bring a claim for a breach of contract which “arises or is outstanding on the termination of the employee’s employment” (Reg 3, Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 (“1994 Order”)). The Tribunal has jurisdiction to award up to £25,000 in damages for such a claim. The time limit for a contract claim is three months from the effective date of termination of employment, subject to the usual ACAS Early Conciliation extension.[93]The burden of proof is on the Claimant to show that there has been a breach of an express or implied term of his contract of employment by the Respondent and that he has suffered loss as a result. Unauthorised deductions from wages[94]By s.13 of the Employment Rights Act 1996 (“ERA 1996”) an employer must not make a deduction from the wages of a worker employed by him unless the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or the worker has previously signified in writing his agreement or consent to the making of the deduction.[95]A deduction occurs when the total amount of wages paid on any occasion by the employer to the worker is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions) (s.13(3) ERA 1996), save for occasions on which the shortfall is attributable to an error of computation (s.13(4) ERA 1996).[96]By s.23(1) ERA 1996 a worker may present a complaint to the Employment Tribunal that his employer has made a deduction from his wages in contravention of s.13 ERA. The time limit is 3 months beginning with the date of payment of the wages from which the deduction was made (s.23(2)(a) ERA 1996) with an extension for early conciliation, unless it was not reasonably practicable to present the claim in time and it was presented within such further period as the Tribunal considers reasonable.[97]If the complaint is about a series of deductions or payments, the three month time limit starts to run from the date of the last deduction or payment in the series (s.23(3) ERA 1996). CONCLUSIONS Breach of contract: pension contributionsCONCLUSIONS
[98]For the reasons given at paragraphs 46—64 above (and summarised at paragraphs 58 and 64 above), the Claimant has not shown on the balance of probabilities that the Respondent was contractually obliged to enrol him onto the NHS pension scheme at the outset of his employment or at any time thereafter.[99]Accordingly I find that the Respondent did not breach the Claimant’s contract of employment by failing to enrol him on the NHS pension scheme. The claim for damages amounting to 6.22% of the Claimant’s pay during the period of his employment therefore fails.[100]In any event, I am satisfied that even if the Respondent had agreed to enrol the Claimant onto the NHS pension scheme, he would not have agreed to make the requisite repayment of over £7,000 in order to trigger retroactive entitlement to the employer’s contributions. It was clear from the Claimant’s evidence and submissions that at all times until he reached the Final Hearing of this case he was of the firm view that the Respondent owed him either 14.6% or 20.6% of his total pay for employer’s pension contributions. He was not of the view that he would have to make repayments in order to activate that entitlement until it was repeatedly explained to him at the hearing. Even then he wavered repeatedly on the point. In reaching this conclusion I take into account the Claimant’s demonstrably intransigent and unreasonable approach to pay issues during his employment and in evidence (see by way of example paragraphs 55, 57, 60 and 87 above). In rejecting his evidence that he would readily have made the repayment, I take into account his dishonesty in attempting to obtain repayment of travel time not undertaken and hotel expenses that were refundable. I conclude that even if there was a breach of contract, the Claimant has not shown that he suffered a loss. Unauthorised deductions from wages / breach of contract Travel time[101]I have found at paragraph 66 above that the Claimant’s post was “cross cover” and that Hinchinbrooke Hospital was therefore one of his base locations. I have also found, at paragraphs 65—78 above, that the Claimant has not shown that he actually undertook the travel upon which this claim is premised, and that his evidence to the effect that he had done so was dishonest.[102]It follows – on either basis – that the amounts claimed by the Claimant were not properly payable within s.13(3) ERA 1996 and did not amount to deductions from his wages.[103]It also follows that the Respondent did not breach any term of the Claimant’s contract of employment in this respect.[104]Accordingly the claims fail. Untaken rest breaks[105]I find that the timesheet was incorporated into the contract of employment. It was referred to expressly in the contract as a mandatory condition of payment of wages, and was provided to the Claimant alongside the contract.[106]The timesheet clearly stipulated in two places that the Claimant must obtain a countersignature in respect of untaken rest breaks. The Claimant erroneously assumed that the provisions of the timesheet did not apply to him. However, they did. As I have found at paragraphs 79—86 above, he did not obtain the relevant countersignatures and was therefore not entitled to payment for the purportedly untaken rest breaks. In any event, he did not show on the balance of probabilities that he did not take the rest breaks in question.[107]Therefore the Claimant has not shown that payment for the rest breaks was properly payable within s.13(3) ERA 1996 and his claim for unauthorised deductions from wages in this respect fails.[108]Furthermore, save that the Claimant is entitled to the sum of £11.97 which the Respondent concedes as an underpayment of wages, he has not shown that the Respondent breached any provision in his contract of employment by failing to pay him for untaken rest breaks, or that any such breach was outstanding at the termination of his employment.[109]Subject to the Respondent’s concession as to the sum of £11.97, the claims fail. On-call non-resident hours[110]I have found at paragraph 105 above that the timesheet was incorporated into the Claimant’s contract of employment. Furthermore, the schedule sent to the Claimant’s agency on 7 July 2023 and signed on his behalf by his duly appointed agent (see paragraph 88 above) was also a contractual document. This also stated that he would be paid for on-call non-resident hours at 50% of his ordinary rate of pay.[111]Accordingly the Claimant was contractually entitled to be paid at 50% of his ordinary rate of pay for on-call non-resident hours and the amounts claimed were not properly payable within s.13(3) ERA 1996 and did not amount to a deduction from his wages. Even if there was a deduction from his wages, he signified his agreement to it in writing by completing and signing the timesheet on which the rate of pay was clearly stated.[112]Moreover there was no breach of a contractual term by the Respondent.[113]The claims fail. Pay in lieu of notice[114]The Respondent concedes that the Claimant is entitled to £1,142.51 for pay in lieu of notice. For the reasons given at paragraph 91 above he is not entitled to an enhancement of that sum in the amount of 6.22% or at all. He has not suffered a deduction from his wages or a breach of contract in this respect. The claim fails. Approved by